There certainly is reason to give particular protection to people with regard to First Amendment expression, such as the creation of celebratory art by wedding photographers. That is not an "accommodation" given as a matter of legislative grace, at least not under any sensible approach to the First Amendment.
It is a separate question whether others' religious conscience should be protected by "accommodations" under the regime created by Employment Division v. Smith. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Wednesday, February 26, 2014 11:49 AM To: Law & Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug: What do you mean by the following: "Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination." There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there "no reason" to accommodate such people if you would accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock <dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> wrote: Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn't have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:434-243-8546> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Ira Lupu Sent: Wednesday, February 26, 2014 11:34 AM To: Law & Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin <hillelle...@gmail.com<mailto:hillelle...@gmail.com>> wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that none have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: Hillel: The same sex marriage laws to which you refer do have "exceptions," for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin <hillelle...@gmail.com<mailto:hillelle...@gmail.com>> wrote: Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians do have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu<mailto:hle...@uga.edu> hillelle...@gmail.com<mailto:hillelle...@gmail.com> SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
